FILED
United States Court of Appeals
Tenth Circuit
February 6, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 14-2162
(D. New Mexico)
RAYMUNDO CASTRO-GAXIOLA, (D.C. No. 2:14-CR-01327-RB-1)
Defendant – Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and Appellant, Raymundo Castro-Gaxiola, seeks to appeal his
conviction and sentence following his plea of guilty to one count of conspiracy to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
possess with intent to distribute fifty kilograms or more of marijuana, in violation
of 21 U.S.C. § 846 and § 841(b)(1)(C). His appointed counsel, Assistant Federal
Public Defender Nia Rucker, has filed an Anders brief and has moved to withdraw
as counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Castro-Gaxiola
has declined to file a pro se response to that brief, and the government has also
declined to file a brief. We therefore base our conclusion on counsel’s brief and
our own careful review of the record. For the reasons set forth below, we agree
with Ms. Rucker that the record in this case provides no nonfrivolous basis for an
appeal, and we therefore grant her motion to withdraw and we dismiss this appeal.
Following Mr. Castro-Gaxiola’s guilty plea, and in preparation for his
sentencing under the United States Sentencing Commission, Guidelines Manual
(“U.S.S.G.”), the United States Probation Office prepared a presentence report
(“PSR”). The PSR calculated Mr. Castro-Gaxiola’s advisory sentencing range as
twenty-seven to thirty-three months, based on an offense level of 17 and a
criminal history category of II. Mr. Castro-Gaxiola had two prior convictions for
illegal reentry into the United States.
At his sentencing hearing, Mr. Castro-Gaxiola did not object to the
Guidelines’ calculations. The government agreed that he should receive a two-
level reduction based on the imminent amendments to U.S.S.G. § 2D1.1, which
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went into effect on November 1, 2014. 1 The government also agreed that he was
entitled to a one-category reduction in his criminal history category. Mr. Castro-
Gaxiola requested a variance from the advisory sentencing range based on his
family circumstances (his wife was due to give birth in one month).
The district court granted the two-level reduction in offense level and the
one-category reduction in his criminal history category, which resulted in an
advisory Guidelines sentencing range of eighteen to twenty-four months. The
court rejected Mr. Castro-Gaxiola’s request for a variance, however, and
sentenced him to eighteen months, at the low end of the advisory range. Mr.
Castro-Gaxiola’s counsel filed a notice of appeal. As indicated, that counsel has
now moved to withdraw as counsel pursuant to Anders.
The Supreme Court’s decision in Anders authorizes a defendant’s lawyer to
seek permission to withdraw from an appeal if, “after conscientious examination,”
the lawyer finds the appeal “wholly frivolous.” Anders, 386 U.S. at 744.
Invoking Anders requires the lawyer to “submit a brief to the client and the
appellate court indicating any potential appealable issues based on the record,”
and the client has an opportunity to respond to his attorney’s arguments. United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at
744); see also United States v. Banuelos-Barraza, 639 F.3d 1262, 1263 (10th Cir.
1
The amendments lowered the offense level for most drug quantity
offenses, including Mr. Castro-Gaxiola’s, under U.S.S.G. § 2D1.1.
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2011). In evaluating the attorney’s request to withdraw, we are required to
“conduct a full examination of the record to determine whether defendant’s
claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to
withdraw and dismiss the appeal. Id.
Applying that standard, we consider counsel’s brief and we have conducted
our own review of the record. Counsel states that there “are no meritorious issues
raised in this appeal. The only potential issue is whether Mr. Castro-Gaxiola’s
18-month sentence was substantively unreasonable.” Defendant–Appellant’s Br.
at 7. We agree that the only potential issue for review is the substantive
reasonableness of Mr. Castro-Gaxiola’s sentence.
“[S]ubstantive reasonableness addresses whether the length of the sentence
is reasonable given all the circumstances of the case in light of the factors set
forth in 18 U.S.C. § 3553(a).” United States v. Damato, 672 F.3d 832, 838 (10th
Cir. 2012) (internal quotation marks omitted). We review substantive
reasonableness claims for abuse of discretion, id., “afford[ing] substantial
deference to [the] district court[].” United States v. Smart, 518 F.3d 800, 806
(10th Cir. 2008). A sentence within the properly-calculated Guidelines range is
presumed on appeal to be reasonable. United States v. Alvarez-Bernabe, 626 F.3d
1161, 1167 (10th Cir. 2010).
At sentencing, as indicated above, the district court granted Mr. Castro-
Gaxiola his requested reduction in offense level and it reduced his criminal
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history category. The court concluded that no further reduction was appropriate,
even with the circumstance of Mr. Castro-Gaxiola’s pregnant wife. We perceive
no abuse of discretion in that determination. It is Mr. Castro-Gaxiola’s burden to
rebut the presumptive reasonableness of his within-Guidelines sentence; we can
conceive of no nonfrivolous argument with which to challenge that sentence.
In short, we discern no meritorious grounds for an appeal. We therefore
GRANT counsel’s request to withdraw, and we DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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